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BENNER v. WEAVER (01/12/59)

January 12, 1959

BENNER
v.
WEAVER, APPELLANT.



Appeals, Nos. 330 and 331, Jan. T., 1958, from judgments of Court of Common Pleas of Snyder County, June T., 1956, No. 112, and Feb. T., 1957, No. 33, in case of Mae M. Benner, administratrix of the estate of George J. Benner, deceased, v. George E. Weaver, and George E. Weaver v. Mae M. Benner, administratrix of the estate of George J. Benner, deceased et al. Judgments affirmed.

COUNSEL

William S. Bailey, with him Samuel Gubin, Horace W. Vought, and Bailey & Rupp, for appellant.

Robert McK. Glass, with him Richard Henry Klein, Leonard R. Apfelbaum, and Harry L. Wilcox, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Musmanno

[ 394 Pa. Page 504]

OPINION BY MR. JUSTICE MUSMANNO.

George J. Benner was killed when a tractor-trailer which he was operating for his employer, Hall's Motor Transit Company, collided with a truck owned and operated by George E. Weaver. Mae M. Benner, administratrix of his estate, filed an action in trespass against Weaver under the Wrongful Death Act and the Survival Act. Weaver, in turn, entered a suit against Hall's Motor Transit Company for damages sustained by his truck. In this suit, Hall's Motor filed a counterclaim against Weaver for damages done to the tractor-trailer. The two cases were consolidated for trial and resulted in verdicts in favor of the plaintiff-administratrix in both the Survival and Death actions and a verdict in favor of Hall's Motor for damages done to its vehicle.

Weaver filed motions for judgment n.o.v. in both cases. They were refused by the court below and this appeal followed.

On May 4, 1955, between 4:00 and 4:30 o'clock in the morning, George Benner was proceeding northwardly on U.S. Highway 11-15 in a tractor-trailer, whose overall length was 44 feet. The trailer had a

[ 394 Pa. Page 505]

    huge box car body carrying 20,000 pounds of steel plates. The vehicles themselves weighed 10,000 pounds each, thus giving to the entire gargantuan combination a total of 40,000 pounds. While Benner was moving northwardly on the indicated highway, George E. Weaver was driving an empty Ford truck weighing 10,000 pounds and about 18 feet long in the opposite direction on the same thoroughfare. When they arrived at a point some eight miles south of Selingsgrove, Synder County, the truck and the tractor-trailer collided, causing the death of Benner. The doctor who examined Benner's body testified that it revealed fractures to ribs on the left side of the chest, to the left thigh, the left leg below the knee and the right arm. The neck was broken. The plaintiff argues, from the concentration of fractures on the left side of the decedent's body, that the violence which caused his death overwhelmed him on his left side. This is an important item to consider in reconstructing the accident in order to determine liability, since there were no eyewitnesses to the tragic mishap.

It is the contention of the defendant that, in the absence of eyewitnesses, any conclusion as to how the cars came together can only be a guess or conjecture and therefore cannot sustain a verdict. It is true that this Court said in Ebersole v. Beistline, 368 Pa. 12, that: "The evidence is insufficient to warrant recovery if it fails to describe, picture or visualize what actually happened sufficiently to enable the fact-finding tribunal reasonably to conclude that the defendant was guilty of negligence and that ...


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